United States District Court, D. Maine
MEMORANDUM DECISION AND ORDER ON DISCOVERY
H. Rich, III United States Magistrate Judge.
a discovery hearing, the parties submitted simultaneous
letter briefs addressing the proper temporal scope of
plaintiff-relator's discovery requests in this qui
tam action brought by the defendant's former
supervisor and alleging that it fraudulently billed MaineCare
(the Medicaid program in the state of Maine) for services
rendered by unqualified individuals. While I reject
defendant, AB Home Health Care, LLC's (“AB
Home”), argument that, as a matter of law, discovery in
this qui tam action should be limited to the period
spanning Longacre's term of employment (January 21, 2014,
through June 2, 2015), see Letter Brief of AB Home
dated Aug. 17, 2018 (“AB Home Brief”) (ECF No.
65) at 1; Plaintiff's First Amended Complaint
(“FAC”) (ECF No. 38) ¶ 7, I conclude that,
even as voluntarily narrowed in her letter brief, two of
Longacre's three categories of discovery remain overbroad
under Rule 26's proportionality test. See Letter
Brief of Rebekah Longacre dated Sept. 13, 2018
(“Longacre Brief”) (ECF No. 74) at
the instant discovery dispute as a motion to compel
production in response to Longacre's RFP Nos. 7-9, 12,
16-23, 25-29, and 31 and Interrogatory No. 4, and for the
reasons that follow, I grant it in part, to the extent that I
order AB Home to produce, within 21 days hereof, documents
and information responsive to the first two categories of
requests for the period from January 17, 2012, through the
suspension of defendant's ability to bill MaineCare
effective November 2017 and documents responsive to the third
category for the period from March 6, 2011, through the
suspension of defendant's ability to bill MaineCare
effective November 2017, and otherwise deny it.
is a home-healthcare provider based in Portland, Maine, and
owned by Abdulfatah Ali. FAC ¶¶ 10-11. DHHS has
licensed AB Home to provide services under MaineCare.
Id. ¶¶ 17-18, 22. This license allows AB
Home to seek reimbursement from MaineCare for services that
it provides to eligible MaineCare members. Id.
¶ 24. The requirements for reimbursement under MaineCare
are set out in the MaineCare Benefits Manual, a set of rules
promulgated by DHHS. Id. ¶¶ 3, 27.
providers such as AB Home may seek reimbursement for personal
care services performed by personal support specialists.
Id. ¶¶ 30-31. In order for a provider to
be eligible for reimbursement, a personal support specialist
must meet certain training and examination requirements.
Id. ¶¶ 40-41. If a personal support
specialist has not met the training and examination
requirements, he or she “must enroll in a certified
training program within sixty (60) days of hire and complete
training and examination requirements within nine (9) months
of employment[.]” Id. ¶ 33. If a personal
support specialist does not pass the required examination
within nine months of employment, his or her “services
. . . must stop until such time as the training and
examination requirements are met.” Id.
Providers are prohibited from seeking reimbursement for
personal support specialist services rendered by
“persons who do not meet the qualification requirements
of the Regulation.” Id. ¶ 34.
worked for AB Home from January 21, 2014, until June 2, 2015,
first as a nurse supervisor and later as director of nursing.
Id. ¶¶ 7, 48, 56. Longacre alleges that,
when she was hired, Ali told her that AB Home's personal
support specialists would not receive a paycheck if the cost
of their services was not reimbursed by MaineCare.
Id. ¶ 49. Shortly thereafter, Longacre observed
that, although some of AB Home's personal support
specialists had worked for AB Home for more than nine months
without completing their training requirements, those
employees were receiving their paychecks. Id.
¶¶ 50-53. Longacre, therefore, believed that AB
Home was submitting requests for reimbursement for services
rendered by the unqualified employees. Id. ¶
62. Longacre has identified eight AB Home employees who,
between January 2014 and June 2015, (i) “were
unqualified for purposes of the MaineCare regulations[,
]” (ii) were scheduled to provide personal care
services and did so, and (iii) received paychecks.
Id. ¶¶ 105-07.
Qui Tam Discovery Limitations
has amended the FCA [False Claims Act] several times to walk
a fine line between encouraging whistle-blowing and
discouraging opportunistic behavior.” United States
ex rel. Duxbury v. Ortho Biotech Prods.,
L.P. (“Duxbury I”), 579 F.3d
13, 16 (1st Cir. 2009) (citation and internal quotation marks
omitted). To that end, AB Home cites authority for the
general proposition that “courts have rejected a
relator's attempt to open wide-ranging discovery that
exceeds the complaint's allegations.” AB Home Brief
at 1 (citing United States ex rel. Spay v. CVS Caremark
Corp., Civil Action No. 09-4672, 2013 WL 4525226, at
*3-4 (E.D. Pa. Aug. 27, 2013) (declining “to allow . .
. a fishing expedition into potential fraudulent claims
beyond 2007 absent some particularized pleading that any such
claims occurred”) (footnote omitted); United States
ex rel. Powell v. Am. Intercontinental Univ., Inc.,
CIVIL No. 1:08-CV-2277-RWS-LTW, 2013 WL 12114445, at *5
(N.D.Ga. Feb. 22, 2013) (declining to permit discovery for
period prior to January 1, 2005, when plaintiffs did
“not plead with particularity fraud with respect to
compliance with [applicable] standards prior to
argues that the instant case is similar to Spay in
that Longacre's complaint lacks particularized
allegations that fall outside the dates of her employ.
See Id. at 2. It acknowledges that Longacre
takes the position that discovery beyond the period of her
employment is critical to prove that AB Home either knew that
the claims it was submitting were fraudulent or recklessly
disregarded whether they were. See id. at 2.
However, it observes that, in United States ex rel.
Jacobs v. CDS, P.A., No. 4:14-cv-00301-BLW, 2016 WL
4146077 (D. Idaho Aug. 3, 2016), the court declined to
broaden the scope of discovery beyond the period of the
relator's employment despite the relator's argument
that broader discovery was justified “to help
demonstrate ‘knowledge and intent.'”
Id. (quoting Jacobs, 2016 WL 4146077, at
further asserts that “[t]he First Circuit has expressly
endorsed limiting discovery to only those claims that satisfy
[Federal] Rule [of Civil Procedure] 9(b)'s particularity
requirement.” Id. at 3 (citing United
States ex rel. Duxbury v. Ortho Biotech Prods.,
L.P. (“Duxbury II”), 719 F.3d
31, 39 (1st Cir. 2013)).
Home's main concern appears to be that Longacre seeks
“to investigate every nook and cranny of AB Home's
provision of PSS [personal support specialist] services for a
decade, in a search to support potential false claims.”
Id. at 2. It asserts that “discovery in a
False Claims Act case is not a ‘roving commission to
investigate all financial dealings of the defendants[,
]'” id. (quoting United States ex
rel. Oughatiyan v. IPC The Hospitalist Co., No.
09 C 5418, 2015 WL 4249195, at *3 (N.D. Ill. July 14, 2015)
(internal quotation marks omitted), noting that, in
United States ex rel. Bane v. Breathe Easy Pulmonary
Servs. Inc., No. 8:06-CV-40-T-24MAP, 2008 WL 4057549
(M.D. Fla. Aug. 27, 2008), the court limited discovery to the
time periods and providers alleged in the complaint, see
id. (citing Bane, 2008 WL 4057549, at
It warns that, if “discovery that vastly exceeds [the]
allegations in the complaint” is permitted, there will
be little to “discourage ‘strike suits,' and
to prevent the filing of suits that simply hope to uncover
relevant information [during] discovery.'”
Id. at 5 (quoting United States ex rel. Karvelas
v. Melrose-Wakefield Hosp., 360 F.3d 220, 226 (1st Cir.
unpersuaded that there is, or ought to be, a general rule in
qui tam actions against the allowance of discovery
for periods either outside the time frame of a relator's
employment or beyond time frames alleged with particularity
pursuant to Rule 9(b) in a relator's complaint.
I perceive no reason why the concerns raised by AB Home
cannot be addressed through the application of the discovery
principles set forth in Rule 26(b)(1), which permits
discovery of nonprivileged matters “relevant to any
party's claim or defense and proportional to the needs of
the case[.]” Fed.R.Civ.P. 26(b)(1).
as Longacre argues, see Longacre Brief at 5,
Duxbury II does not support a wholesale limitation
on discovery beyond the particularized allegations of a
relator's complaint. The First Circuit's
“endorsement” of this limitation was hardly
full-throated. Instead, it merely ruled that the district
court's tailoring of the scope of discovery to the
particularized allegations was “reasonable[, ]”
that the “district court was not required to expand the
scope of discovery based upon the amended complaint's
bald assertions that the purported kickback scheme continued
after Duxbury's termination or that it was
‘nationwide' in scope[, ]” and that the
“result was entirely consistent ...